"Application and Affidavit for Search Warrant Examples"
LEGAL MEMORANDUM 02-264 TO: ALL JUSTICES OF THE PEACE FROM: PATRICIA W. GRIFFIN CHIEF MAGISTRATE RE: NIGHTTIME SEARCH WARRANTS DATE: APRIL 30, 2002 ________________________________________________________________________ The subject of nighttime search warrants was discussed by Chief Magistrate Barron in some detail in Legal Memorandum 80-5, “Search Warrants; A Review” (July 10, 1980) at 7-9; Legal Memorandum 80-5 (4th Supplement) (December 1, 1987). However, since that time, there has been a considerable amount of caselaw concerning such warrants, so that this is an appropriate time to review the current law regarding the issuance of nighttime search warrants. What is a nighttime search warrant? A nighttime search warrant is a warrant that expressly authorizes a search of a residence during the nighttime. To issue such a warrant the judge should not only find the normal probable cause to issue a search warrant, the judge should also be satisfied that there is probable cause to believe that the issuance of the warrant for the nighttime is necessary in order to prevent the escape or removal of the person or thing to be searched for. The requirement for a special nighttime search warrant is contained in 11 Del.C. § 2308 that states: A search warrant shall not authorize the person executing it to search any dwelling house in the nighttime unless the judge, justice of the peace or magistrate is satisfied that it is necessary in order to prevent the escape or removal of the person or thing to be searched for, and then the authority shall be expressly given, in the warrant. For purposes of this section the term “nighttime” shall mean the period of time between 10:00 p.m. and 6:00 a.m. Why is a special warrant required for a search during the nighttime? Nighttime search warrants are required by the Delaware Code in 11 Del.C. § 2308. As explained by the Delaware Supreme Court in Hanna v. State, 591 A. 2d 158 (1992) reh. den.(1991), this code provision provides greater protections than those found in the Constitution. The Court explained as follows: We note at the outset that the claimed illegality of the search in this case derives from a Delaware statute, 11 Del.C. § 2308, which independently furnishes a basis for protecting personal rights even when the federal constitution does not provide the same level of protection. The United States and Delaware Constitutions protect the right of persons to be secure in their homes against “unreasonable searches and seizures.” Searches and seizures are per se unreasonable, in the absence of exigent circumstances, unless authorized by a warrant supported by probable cause. The Delaware Code grants even greater protection against the nighttime search or seizure within a residence. Even when a search is supported by probable cause and a warrant has been obtained, the search may not be conducted at night absent a showing of exigent circumstances that make it necessary to conduct the search at night. Since 1852, a Delaware statute has required that a nighttime search or seizure in a residence, even when a warrant has been obtained, be justified in this manner. Hanna v. State, 591 A. 2d at 162 (emphasis added). When is a nighttime search warrant required? “Nighttime” is defined by 11 Del.C. § 2308 as the period between 10:00 p.m. and 6:00 a.m..1 Thus, a nighttime search warrant is required for a search of a dwelling unit that will be begin during this time period. However, a search beginning before 10:00 p.m. may be extended until after 10:00 p.m. without the issuance of a nighttime 1 Legal Memorandum 80-5 advised that a good rule of thumb is that nighttime means 30 minutes after sunset to 30 minutes before sunrise. However, a later statutory amendment to 11 Del.C. § 2308 specifies that nighttime means the hours between 10:00 p.m. and 6:00 p.m. 2 search warrant. Johnson v. State, 1996 WL 69829, WL op. at 1 (Del. Supr.) U.S. cert. den. 518 U.S. 1010, 116 S. Ct. 2535, 135 L. Ed. 2d 1058 (1996) (upholding search without nighttime warrant which began at 9:30 p.m. and continued after 10:00 p.m.); State v. Dollard, 2001 WL 210106, WL op. at 4 (Del. Super.) (finding that search which commenced at 9:46 p.m. and extended past 10:00 p.m. did not violate 11 Del.C. § 2308). Section 2308 requires a nighttime search warrant for the search of a “dwelling house”. The term “dwelling” is defined in 11 Del.C. § 829(b) as a building which is usually occupied by a person lodging therein at night. Thus, “dwelling house” has been used in the caselaw to mean any lodging, including a temporary lodging such as a motel room. See, e.g. Huggins v. State, 1991 WL 181501 (Del. Supr.) (nighttime search warrant required for search of motel room). In contrast, a nighttime search warrant is not required for the search of an automobile. State v. Bruton, 2002 WL 234743 (Del. Super.) (Feb. 8, 2002) (“Section 2308 does not apply to vehicles by its language, it refers only to dwellings.”) Under what circumstances may a nighttime search warrant for a dwelling be issued? 11 Del.C. § 2308 requires that the judge find that a nighttime search of a residence is necessary “in order to prevent the escape or removal of the person or thing to be searched for.” In other words, in addition to the normal finding of probable cause, there must be some exigent circumstance that requires the search to be made at night. A number of examples of such exigent circumstances have been discussed in the caselaw as follows: 1. Defendant expected to be released from police custody during the night. One common scenario in which such exigency exists is when the defendant (or a co-defendant) is in police custody and appears likely to be released during the night, enabling him or her to return to the dwelling and destroy evidence. For example, in Jackson v. State, 643 A. 2d. 1360, 1366-67 (Del. 1994), reh. den. (1994), U.S. cert. den. 513 U.S. 1136, 115 S. Ct. 956, 130 L. Ed. 2d 898 (1995), the Delaware Supreme Court stated: 3 Here, however, the facts are parallel to those in Dixon and Jensen, where the suspects were in custody and therefore knew of police involvement and would likely seek to destroy or remove any evidence upon their release. Given the fact that Burton was in temporary police custody and expected to be released during the night, “the police had a reasonable basis to believe that if the search warrant [was] not executed that evening the evidence would be destroyed.” Similarly, in Dixon v. State, 567 A. 2d 854 (1989), the Delaware Supreme Court found that probable cause existed for a nighttime search warrant where it was reasonable to believe that the defendants might be released during the night and destroy evidence. The Court stated: Here, the defendants were in custody at the time the police applied for the search warrant. They knew that the police suspected them of the crime. Given the possibility that the defendants would make bail during the night, the police had a reasonable basis to believe that if the search warrant was not executed that evening the evidence would be destroyed. We find that the police alleged with particularity facts sufficient for a neutral judicial officer to find probable cause to believe that a nighttime search was necessary to prevent the removal of the object of the search, as required by 11 Del.C. § 2308. Dixon, 567 A. 2d at 857. What if the defendant is not actually released? As long as the decision to approve a nighttime search warrant is based upon the reasonable expectation that the defendant is going to be released during the night, the failure of the police to actually release the defendant should not invalidate the warrant. What is important is that the decision be made upon reasonable expectations at the time the judge approves the warrant. In this regard, the Delaware Supreme Court stated in Jackson: Jackson contends that since Burton was not in fact released until after 6:00 a.m., there was no need to conduct an immediate nighttime search. At midnight, however, when they applied for the search warrant, the police could not be certain when Burton would be released from custody. Similarly, the police in Dixon and Jensen could not be certain whether the suspects would be able to post bail or would remain incarcerated throughout the night. Furthermore, here the police also had in custody on minor charges both Lachette and Jackson, neither of whom was a suspect in the Girardi burglary/homicide when police applied for the warrant, but who, when released, might try to assist their friend by removing or destroying evidence. In applying for the warrant, the police 4 were not required to peer into the future and accurately forecast the night’s developments. They were entitled to rely upon reasonable expectations. Similarly, the facts known to the magistrate when he signed the warrant, not those which developed at some later time, are the relevant facts in assessing the need for a nighttime search. “We find that the police alleged with particularity facts sufficient for a neutral judicial officer to find probable cause to believe that a nighttime search was necessary to prevent the removal of the object of the search, as required by 11 Del.C. § 2308.” Jackson, 643 A. 2d at 1367 (underlining added). 2. Coconspirators may learn of arrest and seek to destroy evidence. Another circumstance in which exigent circumstances supporting the issuance of a nighttime search warrant for a dwelling have been found has been when there are other individuals who, if alerted to a defendant’s arrest might seek to destroy evidence in a residence. In determining whether to issue a nighttime search warrant on this basis, “[t]he issuing court cannot merely rely on a conclusory allegation that a coconspirator may get wind of an arrest and attempt to destroy evidence located in the premises to e searched. The application must also include averments that support such an assertion – for example, averments describing the conspiracy and indicating that the coconspirators are in the vicinity or have access to the premises. Caldwell v. State, 780 A. 2d 1037, 1054 (Del. 2001). In Caldwell, the Delaware Supreme Court found averments relating to the potential role of coconspirators sufficient to support the issuance of a nighttime search warrant. The Court stated: In this case, the warrant application included a detailed description of a drug distribution operation that was coordinated by Caldwell and several members of his family. These averments, together with the averment that Caldwell’s arrest may have alerted his family members to the police investigation, are sufficient to justify a reasonable concern that the family members would attempt to destroy evidence in the house trailer before the police could execute a daytime search of the trailer. We therefore conclude that the Superior Court did not abuse its discretion in denying Caldwell’s motion to suppress the evidence uncovered as a result of the nighttime search of the trailer. Caldwell, 780 A. 2d at 1054. 5 3. Evidence located in transitory residence such as motel room. Issuance of a nighttime search has also been found to have been justified because the “residence” to be searched was a motel room. In Huggins v. State, 1991 WL 181501, 601 A.2d 1081 (Del. Aug. 21, 1991), the police presented evidence showing that Huggins was conducting illegal drug activity in two hotel rooms. In approving the issuance of the nighttime search warrant, the Delaware Supreme Court stated that “[t]he very fact that the activity was continuing in a transitory location determinatively proves that the warrant was necessary to prevent the escape of both Huggins and any inculpatory evidence.” Huggins, 1991 WL 181501, WL op. at 3. 4. Crime is reported in a residence at nighttime and defendant is still in the residence. In Brown v. State, 1988 WL 101236 (Del. Supr.), the application for a nighttime search warrant stated that the police had received a call requesting assistance at the defendant’s residence and had found the victim suffering from massive head wounds and bleeding. The affidavit also stated that at the time the request for the warrant was made, the defendant and other parties besides the police were still in the defendant’s house. Thus, the Court stated that “it was obvious on the face of the affidavit that there was a potential for the destruction of evidence if the police were not allowed to secure it.” Brown, 1988 WL 1021236, WL op. at 1. The foregoing are examples of exigent circumstances under which a judge may validly approve a nighttime search warrant. These examples are not exclusive and other circumstances may well be presented in which a nighttime search warrant may be justified. However, in reviewing any nighttime search warrant application, the judge should remember to look for some exigent factual circumstance(s) contained in the probable cause affidavit that require the search to be made at nighttime in order to prevent the escape or removal of the person or thing to be searched for. What must be included in the application for a nighttime search warrant? Section 2310(c) of Title 11 provides a form that “shall be sufficient form of search warrant where search of a dwelling house in the nighttime is authorized.” While 6 use of this form can be helpful, the form is a sample and its use is not required. Hope v. State, 570 A. 2d 1185, 1187-88 (1990) citing Jensen v. State, 482 A. 2d 105, 113 (1984). There is also “no requirement that a nighttime search warrant list exigent circumstances [note: the affidavit must do so] or contain a specific finding by the magistrate that probable cause exists to issue the nighttime warrant.” Hope, 570 A. 2d at 1188. However, the warrant must, on its face, expressly authorize a nighttime search. In addition, the affidavit must contain, within its four corners, sufficiently particularized facts to make a nighttime search necessary. Id. An example of an affidavit which was found sufficient for a nighttime search was given in Jackson v. State, 643 A.2d at 1366. The affidavit stated in pertinent part: A nighttime search warrant is necessary since James Burton is currently in the custody of the New Castle County Police for the execution of a search warrant on his person. Once that search is concluded sometime this night, Burton will be released and any evidence that might be at his residence would be in danger of being moved or destroyed. In contrast in Mason v. State, 534 A. 2d 242 (1987), the Court found an affidavit for a nighttime search warrant insufficient and stated: Nothing in the affidavit in this case comports with the statutory requirements that there be a demonstration that the nighttime search is necessary “to prevent the escape or removal of the person or thing to be searched for.” On the contrary, the affidavit recites a series of contacts with the Mason residence over several weeks. There is nothing in the affidavit to support the conclusion that Mason was going to flee from his residence immediately during the nighttime or destroy any evidence. There was no indication in the affidavit that the “nature of the deal” on August 29, 1985, was any different from the nature of the deals with Barnett from Mason’s residence during the previous three weeks. Moreover, the only “evidence” which the police actually knew was in Mason’s home was the $2,100.00 in “marked” money that he was unlikely to want to destroy. Mason, 534 A. 2d at 252. In conclusion, it is important to remember that: 1) the affidavit must state exigent circumstances which create probable cause to believe that it necessary for the search to be conducted during the 7 nighttime hours of 10:00 p.m. to 6:00 a.m. in order to prevent the escape or removal of the person or thing to be searched for; and 2) the warrant must explicitly state that it is for a nighttime search. PWG/crm cc: Honorable E. Norman Veasey Honorable Joseph T. Walsh Honorable Henry duPont Ridgely Honorable Alex J. Smalls Honorable Vincent J. Poppiti Honorable Alicia B. Howard Ferris W. Wharton, D.A.G. All Delaware Police Agencies Alderman Courts Thomas W. Nagle Anna A. Lewis H. John Betts Larry Sipple Law Libraries: New Castle County, Kent County, Sussex County, and Widener University School of Law 8